damages under this law? It was not the holder of the bill at the time it was protested. It appears by the record that the bank had endorsed it to Baring, Brothers and Co.; they to Rothschild, and he had endorsed it to Rothschild and Brothers, who presented it for payment, and were the holders at the time of the protest; and Hottinguer and Co. paid it, supra protest, for the honour, as they declared," of the signature and account of Mr. Samuel Jaudon, cashier of the Bank of the United States, the first endorser." It also appears by the statement in the record, that, although Hottinguer and Co. said they had funds of the bank in their hands, and were apprized that the bill would not be paid by Mr. Humann, they yet declined taking it up, until it should be protested. They did not, therefore, pay it as agents of the bank, but paid it supra protest; and they thereby, upon established and indisputable principles of commercial law, became the holders of the bill in their own right, and not as agents of the party for whose honour it was paid. Rothschild and Brothers, having received the amount due them, had certainly no claim to these damages; and they have made none. I shall not stop to inquire, whether. Hottinguer and Co., who voluntarily intervened in this business, could have claimed of the bank, or of the United States, either re-exchange or damages of any kind. It is sufficient for the decision of this controversy, that they neither claimed nor received them. They demanded what they were entitled to by the general law-merchant, and nothing more--that is to say, the principal, the costs and charges, and usual commissions. They had a right to make this demand directly upon the United States, as drawers, or upon the bank as endorser, both being responsible to them. Ex parte Lambert, 13 Ves. 129. They made their demand upon the bank, as endorser, and as such it paid it. Can the bank enlarge the claim of Hottinguer and Co.? or can it, under and by virtue of the act of 1785, recover from the United States more than it has paid, or is liable to pay as endorser? It will scarcely be said that the bank has become the owner and holder, by paying Hottinguer and Co. and taking up the bill, and are, therefore, entitled to all the rights given to the owner and holder by the first clause of the first section of the act of Assembly. This clause evidently applies to the holder at the time of the protest, and it is the second clause in the same section which defines the rights of endorsers who become holders afterwards by discharging the claim against them; and this clause gives them a right to recover so much as they have paid, and nothing more. If this claim is to be allowed to the bank, what is to be done with this clause in the act of Assembly? It is plain and unambiguous in its words; it is consistent with the other provisions of the law; its policy is evident, and it is in perfect conformity to the general commercial code, which has always been celebrated for the justice and equity of its principles and this claim of the bank cannot be maintained, unless this clause is blotted out of the statute. Can this be done by judicial authority, upon any known rule for the construction of statutes? I think not. There have been many decisions upon the construction of many statutes, but it will be difficult to find a precedent anywhere, or of any time, that would sanction such a decision on an act of Assembly like this. Certainly there never has been any practice in Maryland, nor any decision under this law, to warrant such a construction. Upon the whole case, therefore, the following conclusions appear to me to be irresistible: 1. That the contract with the bank, according to its true construction and meaning, was not for the sale of a bill of exchange, in the legal sense of these terms; but an agreement by which the bank undertook, as agent for the government, to. transfer to the United States the first instalment due under the treaty with France; and that the bill in question was used as one of the instruments for carrying that contract into execution, for the greater convenience of the parties. 2. That if the contract be even considered as one merely for the purchase of a bill of exchange, in the strict legal meaning of the words, yet the bank is not entitled to these damages, because the Maryland act of 1785, under which alone they are claimed, does not extend to bills drawn by the United States. 3. But if the law of 1785 is construed to embrace bills of exchange drawn by the government, and this case is to be decided by the same rules which apply to similar contracts between individuals, still the United States are not responsible for these damages, because the bill in question is drawn upon a particular fund, and, therefore, not a bill of exchange in the legal meaning of the terms, and, consequently, not within the statute. 4. And if the claim were free from the three preceding objections, and to be decided under and according to the provisions of the act of 1785, yet the bank being an endorser of the bill, and not the holder or owner at the time of the protest, it is not by that act entitled to recover these damages, since it has not paid them. Upon each of these grounds, I think the bank has no claim in law or in equity to the damages in question. Note. When this subject was before me as attorney-general of the United States, (if my recollection is correct,) I was under the impression, from the evidence, that Hottinguer and Co. had paid the bill out of the money of the bank in their hands, and as agents of the bank. In that view of the subject there could, I presume, be no foundation for the claim of fifteen per cent. damages; because the bank being the agent of the government, with public money in its possession sufficient to take up the bill, the payment by the agents of the bank out of its money ought to be regarded as a payment for the government, and would in substance and effect be a payment out of the public funds in the hands of the bank. But, upon the facts as now presented in the record, upon the evidence offered by the bank, it appears that Hottinguer and Co. declined paying the bill before protest; and that they paid it supra protest, reserving their remedy on the bill against the bank as well as the United States. They, therefore, according to the proofs, as now stated, became the holders of the bill on their own account; and it is upon this view of the facts that the foregoing opinion is formed. INDEX OF THE PRINCIPAL MATTERS. ADMIRALTY. See PIRACY, and Costs APPEALS. See PRACTICE, and WRIT OF ERROR. APPEAL BOND. 1. An appeal bond given to the people or to the relator is good, and if forfeited, may be sued upon by either. Spalding v. The People of New York, 66. 2. Where there are many parties in a case below, it is not necessary for them all to join in the appeal bond. It is sufficient if they all appeal, and the bond be approved by the court. Brockett v. Brockett, 238. BANKRUPTCY. 1. Under the late Bankrupt act of the United States, the existence of a fiduciary debt, contracted before the passage of the act, constitutes no objection to the discharge of the debtor from other debts. Chapman v. Forsyth and Limerick, 202. 2. A factor who receives the money of his principal, is not a fiduciary within the meaning of the act. lbid. 3. A bankrupt is bound to state upon his schedule the nature of the debt, if it be a fiduciary one. Should he omit to do so, he would be guilty of a fraud, and his discharge will not avai! him; but if a creditor in such case proves his debt and receives a dividend from the estate, he is estopped from afterwards saying that his debt was not within the law. Ibid. 4. But if the fiduciary creditor does not prove his debt, he may recover it afterwards from the discharged bankrupt, by showing that it was within the exceptions of the act. Ibid. BILLS OF EXCHANGE AND PROMISSORY NOTES. 1. By the general law-merchant, no protest is required to be made upon the dishonour of any promissory note; but it is exclusively confined to foreign bills of exchange. Burke v. McKay, 66. 2. Neither is it a necessary part of the official duty of a notary to give notice to an endorser of the dishonour of a promissory note. Ibid. 3. But a state law or general usage may overrule the general law-merchant in these respects. Ibid. 4. Where a protest is necessary, it is not indispensable that it should be made by a person who is in fact a notary. Ibid. 5. Where the endorser has discharged the maker of a note from liability by VOL. II.-97 769 3 T BILLS OF EXCHANGE AND PROMISSORY NOTES. a release and settlement, a notice of non-payment would be of no use to 6. A statute of Mississippi allows suit to be brought against the maker and 7. But an action of this kind cannot be maintained in the courts of the Uni- 8. Where notes are deposited for collection by way of collateral security 9. Where the drawer of a bill has no right to expect the payment of it by 10. It becomes a question of law whether due diligence has or has not been 11. If the drawer and acceptor are either general partners or special partners 12. The strictness of the rule requiring notice between parties to a bill is much 14. Such a bill, when taken up supra protest for the honour of the bank, be- 15. Under the law-merchant, the drawer of a foreign bill of exchange is liable, CHANCERY. 1. Where a party seeks relief which is mainly appropriate to a chancery |